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As the US and UK appear
set to pursue war in Iraq without a second UN resolution, Matthew Happold
explains whether this course of action would be legal.

Thursday March 13,
2003

Is war illegal without
a second UN resolution?

The prohibition
of the use of force is a foundational rule of international law. Only
two exceptions are permitted: the use of force in self-defence, or with
the express authorisation of the UN security council exercising its
powers under chapter VII of the UN charter.

Iraq has not attacked
the US, the UK or their allies, nor is there any evidence that it
is about to do so.

Force may only be
used in self-defence in response to an actual or (according to some
commentators) an imminent armed attack. Therefore
any arguments based on self-defence fail.

What the US national
security strategy has advocated are pre-emptive attacks on countries
which may threaten the US. The use of armed
force in such circumstances is contrary to international law.

What about UN resolution
1441?

Security
council resolution 1441 does not authorise the use of force. Any
attack on Iraq would consequently be illegal.

Resolution 1441 finds
Iraq to be in "material breach" of its disarmament obligations
under earlier security council resolutions. It gives Iraq a "final
opportunity" to comply with its obligations and, to that end, establishes
an onerous and rigidly-timetabled programme of Iraqi disclosures and
UN inspections.

Failures by Iraq to comply
are to be reported to the security council, which must then "convene
immediately ... to consider the situation and the need for full compliance".
The resolution also recalls that the council has repeatedly warned Iraq
of "serious consequences" as a result of its continued violations
of its obligations.

But the resolution does
not authorise the use of force. The term "serious consequences"
is not UN code for enforcement action (the term used is "all necessary
measures").

And,
in their explanations of their votes adopting resolution 1441, council
members were careful to say that the resolution did not provide such
an authorisation.

Why, then, does the
government say there is a legal case for war?

It is difficult to know
on exactly what grounds the government is basing its arguments that
that is a legal basis for war, in the absence of a second security council
resolution.

Ministers
have been less than explicit as to what that basis might be,
and the government has refused to release
the advice given them by the law officers and Foreign Office
lawyers.

Nevertheless, there are
arguments, if not very convincing ones, that the proposed US and UK
action would be lawful. In particular, it is argued that security council
resolution 678 (1990) provides express security council authorisation
for force. That resolution, adopted by the security council in response
to the Iraqi invasion and occupation of Kuwait, authorised the American-led
coalition to use "all necessary means" to liberate Kuwait
and restore peace and security to the region.

Hostilities in the
Gulf war were then terminated by resolution 687 (1991),
which imposed a lengthy list of obligations on Iraq, including several
regarding disarmament. Iraq is in breach of those obligations. Indeed,
resolution 1441 found it to be in "material breach" of them.
Accordingly, so the argument goes, the authorisation to use force granted
the US and the UK by resolution 678 has been re-activated.

However, there are problems
with this analysis. First, it is generally considered that security
council authorisations of force are only for limited and specific purposes.

In the case of
resolution 678, the authorisation to use force terminated with the
adoption of resolution 687.

Secondly, such
an analysis was specifically rejected by security council members
in their explanations for their votes on resolution 1441.

The general view
was that resolution 1441 did not provide for "automaticity",
that is, it did not trigger any authorisation to use force.

Finally, it might be
thought that even if resolution 678 did permit the USA and the UK to
use force to enforce Iraq's disarmament obligations, it does not provide
authority for regime change.

Did the UN give permission
for military action in Kosovo?

The security council
did not authorise Nato intervention in Kosovo, although the situation
was regularised by security council resolution 1244, which imposed a
UN protectorate on Kosovo. Accordingly, many
commentators consider Nato's actions to have been illegal,
although opinion is divided as to both the legal and the moral situation.

The British government
argued that it was permitted to use force pursuant to a doctrine of
humanitarian intervention. The legal foundations of such a doctrine
are, at best, shaky. Certainly,
the doctrine has been rejected by Russia, China
and the 133 states of the G-77.

In any case, the
criteria advanced by the UK permitting humanitarian intervention do
not apply to Iraq.

Are there any other precedents
for action such as that which is being contemplated over Iraq?

Another precedent sometimes
cited is the intervention by Ecowas (the Economic Community of West
African States) in Liberia from 1990. This intervention was not authorised
by the security council, but it was retrospectively approved. Whether
the subsequent approval of the security council can serve to retrospectively
legalise an action unlawful at the time of its commission is debatable.
In any case, Ecowas was seen as a regional arrangement as defined by
chapter VIII of the UN charter and, as such, as having a particular
responsibility for peace and security within its region.

It is difficult
to see the US and UK having such a role in the Middle East.

Could the UK be prosecuted
under international law?

In practice, no. The
UK has acceded to the compulsory jurisdiction of the international court
of justice. Iraq, however, has not. Even if Iraq were to do so now,
it would be barred from bringing a case against the UK until six months
had elapsed. If conflict does ensue, one might expect a new regime to
have been installed in Baghdad before the six months is up.

Could Tony Blair follow
Slobodan Milosevic into the dock?

Unlikely. The
waging of aggressive war is a crime under international law, giving
rise to individual criminal responsibility.

A number of the defendants
at Nuremberg and Tokyo were convicted of crimes against the peace for
having planned and waged wars of aggression. However, no
individuals have been convicted of aggression since.

The UK, unlike the US,
is a party to the Rome statute of the international criminal court.
The statute has been in force since July 1 2002, and the court is now
in the process of being established. Crimes within the jurisdiction
of the court include aggression, but only when a definition of the crime
has been agreed, which has not yet occurred, and only in respect of
acts committed after the adoption of the definition.

It is possible that UK
nationals could be brought before the court and charged with war crimes
or crimes against humanity. However, the court's jurisdiction is subsidiary
to national jurisdictions, so this would only
happen if the UK courts had proved unable or unwilling to
prosecute British nationals suspected of such crimes, which seems unlikely.

Matthew Happold
is lecturer in law at the University of Nottingham

[TVOTW
Insert - Having regard to the above - it
should be noted that claims, arguments or purported justifications which
are based upon lies and falsehood - fraudulent misrepresentations or
intelligence fraud - immediately render any and all of the above arguments
for military action - invalid. Every part of the conflict and subsequent
forced occupation of Iraq by the U.S. (and any other country) - from
20 March 2003 - is illegal. It is not just illegal - it is criminal.

People
the world over should be under no misunderstanding whatsoever - the
case against Bush and Blair is - "open and shut."

They
believe they are safe against prosecution - because both of them think
they have the political power and that of the party machines that support
them - to get away with it. To threaten and use - "gun at the head"
- tactics against those smaller countries that can be intimidated. They
are wrong again - the world has got not just one super power.

It
also has a hyper power - the combined opinion and will of the people
of the world. As surely as we know the sun will rise tomorrow morning
- the people of the world will ensure that - justice will be done.]

(In
accordance with Title 17 U.S.C. Section 107, this material is distributed
without profit to those who have expressed a prior interest in receiving
the included information for research and educational purposes.)

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